DALJIT SINGH Vs. YOGESHWAR PRASAD

JUDGEMENT

(1.) By this Order, I propose to dispose of the application under Order XXII Rule 3 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code, for short) filed by the appellant for bringing on record the legal representatives of the respondent.

(2.) The legal representatives of the respondent have opposed the said application on the ground that the right to sue does not survive after death of the respondent. An injunction, it was stated, does not run with the land but acts only in personam or against a person. Reliance in this regard was placed on Shankara Lingappa versus Nanje Gowda reported in AIR 1981 Kar 78 and Tej Kumar Jain versus Purshottam reported in AIR 1981 MP 55. It was further submitted that the original suit as filed was not based upon a contract between the appellant and the respondent but based upon "torts" and on the death of the respondent the said suit, thereafter made subject matter of an appeal abated. Reliance in this regard was placed upon the commentaries of Winfield and Zolowicz on "Torts", Ratanlal and Dhirajlal on "Law of Torts" and judgments in M. Veerappa versus Evelyn Sequeira and others reported in AIR 1988 SC 506, E.I. Ltd and another versus Klaus Mittelbachert (deceased) through LRs reported in 2002 (62) DRJ 476 (DB), Union of India versus Sat Pal Dharma Vir reported in AIR 1969 JandK 128, S.P. Chengalvaraya Naidu (dead) by LRs versus Jagannath (dead) by LRs reported in AIR 1994 SC 853, Attorney General versus Birmingham, Tame and Rea Drainage Board reported in 1881 (17) Chancery Division 685, Jamsetji Manekji Kotval versus Hari Dayal reported in ILR XXXIL (Bombay Series) 181 and Amritlal Vadilal versus Kantilal Lalbhaj reported in AIR 1931 Bom 280.

(3.) Learned counsel for the appellants, on the other hand, had drawn my attention to the judgment dated 25th February, 1983 passed by the Civil Judge and the issue no.1 decided therein. He submitted that the suit for injunction was not a suit on "torts" as it was not based on an action for un-liquidated damages. It was argued that the right to sue survives and the appeal had not abated. Reliance was placed upon the judgments of the Supreme Court in Puran Singh and others versus State of Punjab reported in (1996) 2 SCC 205, Yallawwa versus Shantavva reported in (1997) 11 SCC 159, H.A. Malvari (dead) by LRs versus Nasiruddin Pirmohd and others reported in (1997) 8 SCC 58 and Manovikas Kendra Rehabilitation and Research Institute versus Prem Prakash Lodha reported in (2005) 7 SCC 224.